LODHA, J. - (1.) THIS is a defendant's second appeal directed against the judgment and decreed passed by the Additional District Judge No. 1, Jaipur City, dated 31st May, 1972, by which the learned Judge set aside the decree passed by the trial court and decree the plaintiff-respondent's suit declaring that the property in question, which is the outer chowk of a house situated at Chowkri Purani Basti in the City of Jaipur belongs to the plaintiff-respondent and the sale of the same in execution of the decree obtained by Ambalal against the judgment-debtor Ganganarayan, was ineffective against the plaintiff. He also issued a perpetual injunction against the defendant restraining them from interfering with the plaintiff's possession over the suit property.
(2.) BRIEFLY stated the facts are as follows - One Ambalal obtained a money decree against one Ganganarain on May 6, 1947. In execution of that decree the suit property was sold on October 8, 1956, and the defendant-respondent Smt. Dhapa purchased it. The sale was confirmed on 18-12-1956, and sale-certificate was granted on May 22, 1961. Thereafter she entered into an agreement for sale of this property with the appellant Bhai Ishardas on August 24, 1961. The sale-deed was got registered by Smt. Dhapa on October 16, 1961. This is how Ishardas has come into the picture. The plaintiff-respondent Bhaironlal was married to the sister of the judgment-debtor Ganganarain. He died during the pendency of the first appeal and is now represented by his widow respondent No. 1 Smt. Govindi. The plaintiff's case, as set out in the plaint, is that Bhaironlal was married to Ganganarain's sister. On account of this relationship Ganganarain agreed to make a gift of the property in question on 10-1-1946 and actually, got the gift deed registered in Bhaironlal's favour on 9-9-1946. The gift deed was not only with respect to the suit property, but in respect to other portions of the house also. In other words the outer Chowk, which is the property in dispute, is only a part of the house, which had been gifted to Bhairon Lal by Ganganarain. It appears that sometime after the gift deed had been executed and registered, there were some differences between Ganganarain and Bhaironlal as a result of which Ganganarain executed a sale-deed in respect of a part of the property already gifted to Bhaironlal in favour of defendant No. 2 Surajmal, who too has died during the pendency of this litigation. But his legal representatives have not been brought on record. When the suit property was attached in execution of the decree in favour of Ambalal against Ganganarain, Bhaironlal filed objection under O. 21, R. 58 C. P. C. , which was allowed. Consequently Ambalal filed a regular suit under O. 21, R. 63, C. P. C. This suit was decreed by the trial court on February 29, 1956 and it was held that the property belonged to Ganganarain and had rightly been sold in execution of the decree against him. Bhaironlal filed appeal, which was allowed on February 6, 1957, and it was held that the suit property was not liable to be attached and sold in execution of decree against Ganganarain, as, before the date of attachment the property already stood transferred to Bhaironlal. As regards the sale of the other part of the house in favour of Surajmal, Bhaironlal filed a suit alleging that the sale in favour of Surajmal was void inasmuch as before the date of the sale the property had been gifted to him. This suit was decreed on October 16, 1958. The plaintiff's case, thus, is that having succeeded both against Ambalal and Surajmal he was recognized to be the undisputed owner of the whole of the house. He has alleged that he had no knowledge about the auction of the suit property in course of execution of the decree of Ambalal nor had he knowledge about the subsequent sale made by the auction purchaser Smt. Dhapa in favour of Bhai Ishardas and that he came to know of this fact when the defendant appellant collected building material at the site and started digging foundation for raising construction. On these allegations the plaintiff brought the present suit on December 23, 1961. The suit was resisted by defendant No. 1 Smt. Dhapa (auction purchaser) and defendant No. 4 Bhai Ishardas (appellant), who filed separate written statements, though the defences taken by them were identical. Other defendants also filed their written statements, but they are not vitally interested in the result of this litigation and it is, therefore, not necessary to mention about them any further. Smt. Dhapa and Ishardas have pleaded inter alia that both of them were bonafide purchasers for value without notice and had purchased the property in good faith. It was further pleaded that Bhaironlal by his acts, conduct and acquiescence was estopped from challenging the title of Smt. Dhapa and Ishardas and that in any view of the matter, the suit was barred by limitation under Art. 12 of the Limitation Act 1908, which was in vogue at the time the suit was instituted. The objection regarding insufficiency of court fees was also taken. After recording the evidence produced by the parties the trial court dismissed the suit. Aggrieved by the judgment and decree of the trial court, the plaintiff Bhaironlal filed appeal and, as already stated above, the appellate Court decreed his suit. Hence this appeal by the defendant Bhai Ishardas. Learned counsel for the appellant has argued the following points in support of his appeal: (1) that Smt. Dhapa was a bonafide purchaser for value in a court auction and had obtained possession of the suit property after the sale deed had been made in her favour and at any rate, so far as the appellant is concerned, he purchased the property from Smt. Dhapa, the ostensible owner, after taking all precautions and was, therefore, protected under sec. 41 of the Transfer of Property Act; (2) that by his act, conduct and acquiescence Bhaironlal is estopped from challenging the title of the appellant; (3) that Bhaironlal is a representative of the judgment-debtor Ganganarain and the matter agitated in this suit pertains to execution, discharge or satisfaction of the decree, and, therefore, no suit is maintainable under sec. 47, C. P. C; (4) that the suit should have been brought within 1 year of the confirmation of the sale in favour of Smt. Dhapa u/art. 12 of the Limitation Act, 1908 and is consequently barred by limitation. In this connection it has also been argued that even if Art. 12 is held not to be applicable to the case, the suit would nevertheless be governed by Art. 142 and it was incumbent upon the plaintiff to show that he had been dispossessed within 12 years of the date of filing of the suit and since this has not been done, the suit must, in any case, be treated as time barred. Now so far as the question of purchase by Smt. Dhapa is concerned, it is not disputed before me that there is no warranty of title in an auction sale. The contention of the learned counsel for the plaintiff-respondent is that the sale in favour of Smt. Dhapa is hit by the principle of lis pendence under sec. 52 of the Transfer of Property Act. There is high authority in support of the proposition that the doctrine of lis pendens applies to court-sale also. Reference in this connection may be made to Samarendra vs. Krishna Kumar (l); Kedarnath vs. Sheonarain (2); and Jayaram Mudaliar vs. Ayyaswami (3 ). It was observed by their Lordships in Samarendra vs. Krishna Kumar (Supra) that it is true that sec. 52. strictly speaking, does not apply to involuntary alienations such as court-sales, but it is well established that the principle of lis pendens applies to such alienations This view was reiterated by their Lordships in the two subsequent decisions referred to above. In the present case the sale in favour of Smt. Dhapa took place on July 8, 1956, and was confirmed on December 18, 1956. This sale admittedly took place after the institution of the suit by Ambalal under O. 21, R. 63 C. P. C. This suit was ultimately decreed by the appellate court on appeal by Bhaironlal on February 6, 1957. Consequently there is no escape from the conclusion that the court-sale in favour of Smt. Dhapa is hit by the doctrine of lis pendens.
(3.) LEARNED counsel for the appellant has, however, urged that a transfer lis pendens is not a nullity and is not void ab initio. In support of his contention he has cited T. L. Desai vs. Yogabai Paranjape (4); Kartikdas vs. Ganeswar Acharya (5); and Indu Bhushan vs. Sudhakar (6 ). In T. L. Desai vs. Yogabai Paranjape (supra) it was held that a sale cannot be regarded to be a nullity because of a bar of lis pendens, whether the sale is voluntary or involuntary. In Kartikdas vs. Ganeswar Acharya (supra) it was held that an alienation pendente lite is not void-ab-initio. It is a voidable transaction. The effect of the doctrine of lis-pendens is that such an alienation is subject to the result of the suit. In Indu Bhushan vs. Sudhakar (supra) the learned Judge held that the doctrine of lis pendens as embodied in sec. 52, Transfer of Property Act, does not mean that a transfer pendente lite is either illegal or void. What it does mean is that it is only voidable to the extent that it effects the rights of the party who obtains the decree or an order in the pending litigation and that too at the instance of that party only and not of any other party. It is good otherwise and cannot be questioned by a third party or even by the successful party in the pending litigation if his right in the property in question is left unaffected by the transfer. ;